Tuesday, February 15, 2011

Another Delayed Protest Case

UPDATED TO FIX A TYPO. Thanks, Victor.

The Court of International Trade has issued another decision in a case brought by a frustrated importer waiting too long for a protest decision from Customs and Border Protection. The case is Norman G. Jensen, Inc. v. United States. After waiting more than two years for a protest decision, Jensen went to the CIT seeking a writ of mandamus ordering Customs to act on the protests. Mandamus is available where the petitioner has a clear right to some governmental action. Since Customs has a two-year statutory deadline for deciding protests, it makes sense that the importer has a right to a decision. Typically, though, Courts will order the government to complete the action only when it is ministerial or clerical in nature. Since this involved a protest decision, it strikes me that the exercise of legal analysis needed may not have been ministerial, but that was not the peg on which the Court hung its dismissal hat.

Rather, the Court dismissed the case on the basis that it lacked subject matter jurisdiction. The plaintiff brought the case under the Court's residual jurisdiction provision 28 USC 1581(i). But, the Court has jurisdiction to review denied protests under 1581(a). The long-standing rule has been that a plaintiff cannot get into the Court of International Trade on 1581(i) grounds when it could have availed itself of 1581(a).

In the case of a protest, an importer can force a decision by requesting accelerated disposition under 19 USC 1515(b). Under this statute, an importer can ask Customs and Border Protection to act on a protest. If Customs does not decide the protest within 30 days of the request for accelerated disposition, then the protest is deemed denied. Either an actual denial by Customs or a deemed denial provides a basis for judicial review under 1581(a). Because 1581(a) is not a manifestly inadequate way for the plaintiff to get the relief it is seeking, the Court found it lacked jurisdiction to hear the case.

If this sounds familiar, it is because a similar issue was raised recently by Hitachi Home Electronics. Perhaps, on the basis of these decisions, Customs is going to see a lot more requests for accelerated disposition.


Peter S Herrick said...

Both this court and Hitachi missed an important point. Where an importer files a bona fide protest where it is clear it should be approved, why force the importer to risk an adverse accelerated decision and be forced to unnecessarily pay duties for the court to get its 1581(a) jurisdiction. If Customs fails to act on a protest within 2 years it should be deemed approved.

Leroy F. Berven said...

Unfortunately, there is still a distinction here, between what the statute and implementing regulations should say, and what they do say. As annoying and convoluted as the current scheme may be, the CIT does not have the authority to create a new pathway for handling protests; Congress does.